AN on again, off again claim by the Philippines to Sabah recently stirred debates amid the Covid-19 pandemic after several ranking personalities expressed their views that “the land below the wind” belongs to the Philippines.
Former Philippine Ambassador and Law of the Sea expert Alberto Encomienda, during a recent Zoom conference, said documentary evidence would prove that Manila has a “rightful and legal claim” to the former North Borneo, which is located outside the typhoon belt that regularly visits the Philippines.
“The coming presidential election in 2022 should be an appropriate time for the prospective presidential candidates to express their views on this ticklish issue,” he said in a telephone interview, adding he wanted the issue to remain in the public domain and would be satisfied if the issue is settled once and for all—“for the sake of history.”
He said the Philippines pursued its claim to Sabah but the effort appears to be sporadic at best. “I hope that from this roundtable discussion, since we have an election coming up [in 2022], we can really generate attention and action in this regard. Maybe not now, not during [President Rodrigo] Duterte’s term but it must be in the public discourse,” Encomienda pointed out.
Rekindled
After a few years’ silence by Philippine officials on the Sabah claim, Foreign Affairs Secretary Teodoro L. Locsin Jr. started the ball rolling in July last year when he chastised the US Agency for International Development (USAID) for saying, during a donation of hygiene kits, that they were meant for use by “returning Filipino repatriates from Sabah, Malaysia.” Locsin said categorically, Sabah belongs to the Philippines.
The statement prompted Locsin’s counterpart, Malaysian Foreign Minister Hishammuddin Hussein, to announce that he will summon Philippine Ambassador to Malaysia, Charles Jose, to explain Locsin’s “irresponsible statement” that Sabah belongs to the Philippines.
Locsin, in a tweet, insisted that his recent remark about Sabah not being part of Malaysia is “historically factual,” while lamenting Hussein’s move to summon Jose. He added that he was just asserting the Philippines’s claim in the territory similar to what he said is being done with the West Philippine Sea.
“You summoned our ambassador for a historically factual statement I made: that Malaysia tried to derail the Arbitral Award,” Locsin said in a reply to an earlier tweet by Minister Hussein.
Malaysia was established on September 16, 1963, comprising the territories of Malaya (now Peninsular Malaysia), the island of Singapore, and the colonies of Sarawak and Sabah in northern Borneo. In August 1965, Singapore seceded from the federation and became an independent republic.
Encomienda, a former envoy to Greece, Malaysia and Singapore, added that the country pursued the Sabah claim “always with the rule of law and peaceful settlement approach with Malaysia and there were a series of negotiations with the Malaysians until it was abruptly cut off.”
He added, “I want to emphasize this because we have many issues on sovereignty and sovereign rights, that we were consistent in trying to work this out in a very orderly manner, diplomatically and following the rule of law.”
According to Encomienda, “our endgame in the negotiations with Malaysia before the cut-off was a proposition that we bring the Sabah issue to the UN, which Malaysia agreed to and they agreed that we refer this to the International Court of Justice (ICJ).”
On September 12, 1962, during President Diosdado Macapagal’s administration, the Philippine government claimed the territory of North Borneo and the full sovereignty, title and dominion over it were “ceded” by the heirs of Sultan of Sulu, Muhammad Esmail E. Kiram I, to the Philippines, according to historical accounts.
Who ‘dropped the ball’?
Encomienda said the claim was a continuing process from President Macapagal up to President Ferdinand Marcos but then, “somebody dropped the ball.”
He suggested that in the coming presidential elections, those interested to pursue the Sabah claim should ask the views of former President Ferdinand Marcos’s heirs, former senator Ferdinand Marcos Jr., and his sister, Sen. Imee Romualdez Marcos. It was during the term of the late strongman’s rule that the country was active in pursuing the claim to Sabah.
“Let us also ask GMA [Gloria Macapagal-Arroyo], the former President whose father, the late Diosdado Macapagal, first started to stake its claim to Sabah.”
In 1962, the country started to claim Sabah after the heirs of the Sultan of Sulu and North Borneo gave the government, then headed by President Macapagal, the legal authority to negotiate on their behalf. Macapagal filed with the United Kingdom the Philippine claim of sovereignty, jurisdiction and ownership of North Borneo.
The following year, Sabah was annexed to Malaysia when it declared its independence from the United Kingdom. British North Borneo Co. had since ceased paying when its rights to Sabah is transferred to the newly established Federation of Malaysia. The new government assumed the payment but in ringgit.
“GMA should be able to support our claim to straighten the public narrative,” Encomienda said, and, at the same time…to find out the current status of the Sultan of Sulu. “We’re not asking the Sultanate to secede but to clarify their stand.”
He said it would be timely to discuss the Sabah claim during the forthcoming elections, saying he feels that all the candidates would be able to help clear up the narrative about the Sabah issue. He said he fears that after the Duterte administration ends, the issue may die a natural death, especially if those elected to replace him are from the political opposition.
The preceding administration of President Benigno Aquino III had been perceived as leaning toward Malaysia, washing its hands off the 200-plus Filipino followers of the Sulu sultanate who made an ill-fated landing in Sabah in 2012. Aquino’s Liberal Party is now the opposition.
Swept under the rug
SINCE the issue of the Sabah claim has been discussed lengthily in the media, there has been no mention at all about the opinions of the surviving heirs to the Sultanate, except the claim of their representative, Abraham Ijirani, secretary general, Sultanate of Sulu.
“In the midst of this discussions,” Encomienda said, “it appears the Sulu Sultanate has been sweep under the rug,” adding “the media would be able to help if they could interview the Sulu heirs to find out their stand, views and feeling about this issue. The Sultanate’s heirs’ role has been relegated to the claim that Malaysia continues to pay them ‘rent,’” which has since been stopped.
In July 2020, Minister Hussein said his country had stopped paying cession money to the heirs of the Sultanate of Sulu because Malaysia also did not recognize and entertain any claim by any party over Sabah, which has been recognized as part of Malaysia by the United Nations.
The Philippines maintains a territorial claim over Sabah based on an agreement signed in 1878 between the Sultan of Sulu and the North Borneo Chartered Company. It maintains the position that the sovereignty of the Sultanate over the territory was not abolished and that North Borneo was only leased to the North Borneo Chartered Company.
However, Malaysia considers the dispute a “non-issue,” as it interprets the 1878 agreement as that of cession; and that it deems that the residents of Sabah had exercised their right to self-determination when they joined the Malaysian federation in 1963.
Sabah belongs to PHL
“IT [Sabah] is ours. We have a [valid] claim. It is properly documented. We were trying to pursue it with all peaceful means,” said the former envoy during the Zoom conference entitled “Sabah: Is it part of the Philippines?”
“Except that it was not accidental. I’m sorry to say, this is my view but having been exposed to it [Sabah issue] and looking at the process going on, the claim was cut off also during the administration of former President Benigno Aquino III.”
Encomienda relates that three to four months after his mother, the late President Corazon Aquino, assumed power in 1986, there were intense activities because of the coming Association of Southeast Asian Nations (Asean) summit. “Malaysia would not have come unless we work on this issue,” he added.
When President Fidel V. Ramos was elected, he revived the Sabah claim “until the ball was dropped.”
Encomienda said, “From the beginning it was clear our claim to Sabah was based on a cession of sovereignty from the Sultan of Sulu until the Federation of Malaysia came about.”
Compensation
Historical accounts said that in 1658, the Sultan of Brunei ceded the northern and eastern portions of Borneo to the Sultanate of Sulu in compensation for the latter’s help in settling the Brunei Civil War in the Sultanate. “Yes, we have a process going on since [former president] Diosdado Macapagal,” Encomienda said.
Unfortunately, he said, the office “burned down close to Christmas in the late ’70s. I would say there was nothing more to reconcile. [But] we have others in the DFA [Department of Foreign Affairs] library that also burned down completely.”
Whether the burning was coincidental or intentional, Encomienda said, “I have my own thoughts but the investigation said it was due to faulty electrical wirings and the convenient excuse was that those were old buildings.”
Asked how the Philippines could start anew the arrested claim to Sabah, Encomienda said: “We send out feelers first and make it clear with the other side [our intention].”
He added, “In a friendly atmosphere we usually get positive results, that’s how it’s usually done, and there was positive response from Malaysia.”
Recalling his stint in the DFA, Encomienda said, “In the initial phase, the Sabah issue was done quietly; we have a program of action,” he said.
At the moment, he said managing the claim to Sabah might take longer “because the ball was dropped intentionally.”
“We must not say we are renewing our claim to Sabah because it was never suspended. We have to continue where we were before and our unity will be necessary,” Encomienda said.
Aside from discussions with Malaysia, the former envoy said Manila can submit a case to the ICJ “because we are very transparent in our action plan. We are ready to submit documents.”
Considering the legality of the Philippines’s claim to Sabah, Encomienda said, “Our claim is that it’s a legal issue and must be referred to ICJ as principal judicial organ of the UN.”
He said that was the Philippines’s stand, which was in the open until the term of the late President Marcos, who was accused by the late Senator Benigno Aquino Jr. in connection with the Jabidah Massacre, but that is another story.
Meanwhile, Abraham Ijirani, Secretary General of the Sultanate of Sulu and one of the Zoom forum participants, said he is ready to provide the necessary documents to the Sabah claim “under Sultan Kiram II should the Philippines decide to pursue the Sabah claim in the UN or ICJ.”
He denied allegations that the Sulu Sultanate is fragmented, saying there remain nine principal claimants, but who want to be represented by only one person.
Fragmented heirs?
“Malaysia is simply escaping by always saying that the heirs are fragmented, but actually the nine heirs are ready if contacted by the authorities,” Encomienda said.
He said, “In the course of the process, the Malaysians agreed on the ruling handed down by Chief Justice Charles Frederick Cunningham Macaskie of the High Court of North Borneo, on the share entitlement of each claimant.
“This ruling has often been quoted by proponents of the Sulu Sultanate’s claim as proof of North Borneo’s acknowledgment of the sultan’s ownership of the territory, although it was made solely to determine who, as heir, was entitled to the ‘cession money’ of 5,300 Malaysian ringgit per year.”
He said under the 1939 Macaskie judgment, the Malaysians want to talk only to one person and not the nine representatives because that would be “very unwieldy.”
Then Senator Raul Manglapus was able to bring together only seven of the claimants but not the remaining two. Malaysia wants to talk to only one person among the heirs because the Kiram descendants could not agree among themselves “so Manglapus was brought in as spokesman.”
“The Malaysians agreed to settle the proprietary rights that was laid out by the Macaskie judgment, but the heirs could not agree who would speak for the nine heirs. Manglapus took over but was unsuccessful.”
Asked what mode of law the Philippines is invoking to claim Sabah, Encomienda replied: “We don’t have to re-read history. All the documents are there, but ours have been burned twice. If Irijani can come to reconstruct the documents, then we can sound out Malaysia, so can we settle this once and for all.”
At that time, he said, “we agreed for Sabah to join Malaysia on condition that we may have to pursue it depending on the results of what’s anticipated as the ruling of the ICJ.”
He added that President Marcos had agreed that “if the ICJ said, ‘it is not yours,’ then that’s the end of our claim.”
Oil rich
Asked how rich Sabah is, Encomienda pointed out “that Malaysia is among the biggest oil producers in the world, whose oil wells are in Sarawak and Sabah.”
Malaysia’s adamant objections to the Philippines’s claim to Sabah is understandable, especially in the wake of the discovery of oil in 2011. “In shallow waters off the west coast of Sabah, Petronas discovered a gas field estimated to contain 500 billion cubic feet of gas in place,” according to sources.
In 2020 Malaysian state-owned energy giant Petronas was expected to pay the resource-rich state of Sabah 1.25 billion ringgit ($303 million) in sales tax next year, state media said.
Sabah and neighboring Sarawak state in Borneo Island hold much of the nation’s oil and gas reserves and have long asked for more payments from Petronas, the sole manager of the country’s energy reserves.
Image credits: SHARIF PUTRA | DREAMSTIME.COM
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